Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.

COMMONWEALTH POWERS (DE FACTO RELATIONSHIPS) BILL 2006 (No. 21)

Second Reading

[1.54 p.m.]

Mr KONS (Braddon - Minister for Justice and Industrial Relations - 2R) - Mr Deputy Speaker, I move -

That the bill be now read the second time.

The Commonwealth Powers (De Facto Relationships) Bill proposes to refer power to the Commonwealth in relation to the settlement of property and other financial resources on the breakdown of a de facto relationship. At the present time, where a de facto relationship breaks down disputes about residence and contact for children are dealt with in the Family Court of Australia pursuant to the reference of power contained in the Tasmanian Commonwealth Powers ( Family Law) Act 1987. Disputes over property and maintenance are dealt with in the Supreme Court or in the Magistrates Court Civil Division.

It would obviously be better for the parties if all issues arising out of the breakdown of a relationship are dealt with in the one court - the Family Court - which has significant expertise in this area. This will reduce duplication of proceedings, reduce costs and hopefully minimise the stress that accompanies the breakdown of relationships.

Whilst in Tasmania the term 'de facto' has been superseded by the term 'significant relationship' as defined under the Relationships Act, it is more appropriate in this bill to use the term 'de facto relationship' which is defined thus: 'de facto relationship means a marriage-like relationship (other than a legal marriage) between two persons'. This keeps consistency with Commonwealth terminology.

This referral has been developed by the Standing Committee of Attorneys-General - SCAG - for some time, and the model bill on which this bill is based has been prepared in conjunction with SCAG and the Parliamentary Counsels Committee. This referral is similar to references of power by all States of de facto children's issues which are now dealt with by the courts exercising jurisdiction under the Family Law Act 1975. Western Australia is an exception as it has its own State-based family court.

References by the States to the Commonwealth will enable the provisions of the Family Law Act to apply in those States to the property of de facto relationships. De facto couples will be able to use Federal courts to resolve issues relating to both children and property. Property legislation would thus apply consistently and nationally to both married and de facto couples. To date, New South Wales, Queensland and Victoria have made such references. These references will be activated upon the Commonwealth passing its amending legislation.

The additional advantage is that de facto couples will be able to benefit from the Commonwealth superannuation splitting regime contained in the Family Law Legislation Amendment (Superannuation) Act 2001. This regime already enables married couples to divide their superannuation interests in the same way as their other assets upon marriage breakdown. As members would appreciate, it is not constitutionally possible for Tasmania to amend its Relationships Act 2004 to regulate the division of superannuation interests of de facto couples along the lines of the provisions made in the Family Law Act without amendments to the Commonwealth superannuation industry supervision legislation.

The Commonwealth has indicated that it is not prepared to make amendments to the superannuation industry supervision legislation to give effect to State legislation for the division of superannuation interests of de facto couples. The Commonwealth considers that it is preferable for issues concerning the division of superannuation to be dealt with at the Commonwealth level in order to provide uniformity and equity for formerly married and de facto couples.

I also agree that the national interest would be best served by all States making suitable references and that referring States should enact their reference legislation in substantially identical form. This is the best way to ensure that the resultant scheme for the property of de facto couples established by Commonwealth legislation will not be vulnerable to challenge on constitutional grounds, and that the scheme operates in a consistent manner across different States.

Unfortunately the Commonwealth has indicated that it will not extend these benefits to same-sex couples. The Tasmanian bill contains separate provisions applying to heterosexual and same-sex de facto couples. This has been done to ensure the validity of any Commonwealth legislation in the face of clear indications from the Commonwealth that it intends to exercise power only in relation to heterosexual de facto couples. Currently, under the Tasmanian Relationships Act, same-sex de facto couples have the same rights as heterosexual de facto couples in relation to the division of property on the breakdown of a relationship. For reasons of equity, the advantages of superannuation splitting should be provided to same-sex de facto couples. The Commonwealth is not prepared to allow this to happen. This intransigence on the part of the Commonwealth in refusing to legislate in respect of same-sex couples is to be deplored and is clearly discriminatory.

Despite this discriminatory behaviour by the Commonwealth, the majority of States consider that it is desirable to extend the benefit of the family law property provisions to the very many heterosexual de facto couples in their jurisdictions, particularly as de factos will otherwise be denied access to the superannuation splitting arrangements that took effect at the end of December 2002. It is therefore thought preferable that a reference be made even if the current Commonwealth Government refuses to legislate with respect to same-sex de facto couples. This will not prevent a future Commonwealth government addressing the issue of same-sex couples.

The referral of power will obviously benefit a number of de facto couples in Tasmania, especially those with children. Once the Commonwealth has passed legislation extending the benefits of the family law property provisions to heterosexual de facto couples, they will be able to use Federal courts to resolve issues relating to both children and property upon the breakdown of a relationship. The ability to have both children and property issues dealt with by a single court will help minimise the heavy burdens and stresses that accompany the breakdown of any relationship. The referral will also provide added financial security for the many non-working and lower-income partners in de facto relationships, the majority of whom are women.

As the Australian Institute of Family Studies' report Superannuation and Divorce in Australia points out, entitlements to the wealth represented by superannuation funds is unevenly distributed between the sexes. This is not an issue as long as a relationship lasts to retirement and beyond. However, access to the benefits of superannuation are lost to many women upon the breakdown of a relationship. This has become more of an issue given the Federal government policy of promoting self-funded retirement. As a result, superannuation represents an increasing greater proportion of wealth in Australia, second in importance only to the family home.

In the face of the increasing reliance on superannuation as a form of wealth, allowing superannuation interests to be divided on the breakdown of a relationship will help ensure that the future interests of all parties is taken into account on the breakdown of a relationship. I commend the bill to the House.

[2.01 p.m.]

Mr MICHAEL HODGMAN (Denison) - Mr Speaker, this is historic legislation and it is singularly appropriate that it is being dealt with in the 150th anniversary year of the Tasmanian Parliament in this magnificent city of Launceston and these beautiful, majestic and might I say regal surroundings of the Albert Hall. My dear friend, the member for Bass, Mr Peter Gutwein, asked me specifically to extend a warm welcome to all the children here today, particularly the students from Sacred Heart, who are most welcome here in this very important Parliament.

It is historic legislation. The purpose of this bill is to refer power to the Commonwealth in respect of financial matters relating to de facto partners arising out of the breakdown of heterosexual and same-sex de facto relationships. The bill is based on a model bill, already agreed to by the Standing Committee of Attorneys-General and the Parliamentary Counsels Committee. The reference is pursuant to section 51 placitum 37 of the Constitution of the Commonwealth of Australia. It strongly believed that disputes arising out of the breakdown of de facto relationships should be resolved in one specialist court, and that is the Family Court of Australia. Might I just put on the record that in the 44 years I was in full-time legal practice I never appeared in the Family Court but I do recognise that it is the appropriate forum to deal with these matters. Consequently, we are supporting the bill.

The States have already referred power so that the Family Court may deal with disputes pertaining to 'residence' and also the question of 'contact' of children of de facto relationships. The proposed referral of power will enable the Family Court to also settle the property and maintenance issues of de facto couples instead of the Supreme Court or the Magistrates Court. This reference will also enable changes in the Commonwealth legislation relating to the splitting of superannuation to be applied to the breakdown of de facto relationships as well as marriages.

This referral of powers has already been given by the parliaments of New South Wales, Queensland and Victoria. It does not apply in Western Australia because, as the Attorney said, Western Australia has its own State-based Family Court. It is common knowledge that when a State refers a power to the Commonwealth it can either refer it in toto or with some limitations. I think in the spirit of generosity the State Liberals have agreed to refer the entire power and that will mean that, whilst the present Commonwealth Government has already clearly indicated it will only legislate with respect to heterosexual de facto couples, despite referral by the States of powers in relation to both heterosexual and same-sex de facto couples. The referral that we are giving today in relation to same-sex couples will lie dormant until such time as a future Commonwealth government may choose to exercise power with respect to same-sex couples.

Mr Speaker, it is historic legislation. On behalf of the Opposition I give our total support to the legislation. We are pleased that this very important constitutional referral of powers is being effected by the House of Assembly here today, sitting in Launceston in this magnificent and most significant sitting of the Parliament. We support the bill.

[2.06 p.m.]

Mr McKIM (Franklin) - Thank you, Mr Speaker. The Greens will be supporting this bill. It is currently a ludicrous situation whereby upon the breakdown of a de facto relationship disputes about residence and contact of children are dealt with in the Family Court while disputes over property and maintenance are dealt with at State level by the Supreme Court or in a Magistrates Court. That is clearly not a good situation and we are very happy to support this bill which will mean that all of those previously mentioned matters will be dealt with in the Family Court.

May I firstly express my disappointment in relation to the position that the Commonwealth has taken in regard to same-sex couples. In his second reading speech the minister described it as unfortunate and I would agree with him that it is unfortunate, but it is also in my view highly discriminatory and a situation which ought not to exist in this day and age in an enlightened society such as ours. I am glad that the decision was made by the Government in Tasmania, notwithstanding the Commonwealth's position, to apply the measures to heterosexual and same-sex de facto couples.

The Attorney-General did make clear in his second reading speech the situation that currently pertains in Tasmania in relation to same-sex couples under the historic Tasmanian Relationships Act which was brought into this House by Mr Kons' predecessor, Mrs Jackson, to considerable, and in my view, well-deserved acclaim. However, let us not make a mistake about this. The Relationships Act, good though it is, is not perfect. It entrenches discrimination in State law against same-sex couples by providing that, for example, they cannot access general placement adoption, to name just one area where discrimination still remains at a State level. Let us also make no bones about it: we know the previous speaker, the member for Denison, Mr Hodgman, does not support the removal of all discrimination faced by same-sex couples because he brought into this House a motion which, with the combined votes of the Labor and Liberal parties, made it clear that this House collectively does not support the principle of same-sex marriage.

Let us be very clear about this issue of same-sex marriage. Marriage is a religious institution but it is also a civil institution in our society and what we are doing, scandalously in my view, is denying same-sex couples access to one of the most fundamental civil institutions in our society - the institution of marriage. Shamefully, as a House we have said to people who happen to be of the same gender that, despite the fact that they might love each other and want to make a public commitment to each other, we are not going to allow them to do that via the institution of marriage.

So while we pat ourselves on the back today for what we are doing, and deservedly so, let us not kid ourselves. We have a long way to go on this issue and, as I indicated when I tabled the same-sex marriage bills during the last Parliament, I will not be resting on this issue. I fundamentally believe that we ought to end all discrimination faced by same-sex couples. We are a State Parliament and I will dedicate myself, at least in part, to doing everything I can to bring about an end to that discrimination.

Mr Speaker, this is an historic bill, as the member for Denison, Mr Hodgman, said. It fixes up a clear anomaly in the way that our courts deal with de facto couples and, as a result, it has rightfully achieved the support of all members of this House, including me and my colleagues from the Greens.

[2.11 p.m.]

Mr KONS (Braddon - Minister for Justice and Industrial Relations) - Mr Speaker, I thank my parliamentary colleagues for their support of for this bill. It is ground-breaking legislation and to have it done in Launceston is a good opportunity. On those few words I commend the bill to the House.

Bill read the second time and taken through the remaining stages.